3.3.

1 Rantsev v Cyprus and Russia

The positive human rights obligations of states, in respect of the prevention of slavery and forced
labour, were confirmed by the European Court of Human Rights in Rantsev v Cyprus and Russia
(Application No 25965/04) (unreported) given 7 January 2010, ECtHR.

Box 7 Rantsev v Cyprus and Russia (Application No 25965/04) (unreported) given 7 January 2010, ECtHR

Oxana Rantseva was a 20-year-old Russian woman recruited to work as an ‘artiste’ in Cyprus. She was
trafficked to Cyprus, a destination country for women trafficked from Eastern and Central Europe, for
the purpose of sexual exploitation. While in Cyprus, she was subjected to sexual exploitation in a
cabaret in the island’s largest coastal resort, Limassol. Shortly after her arrival in Cyprus, Miss Rantseva
died in suspicious circumstances. Miss Rantseva was found dead in March 2001 below the balcony of an
apartment belonging to an employee of the cabaret, having been taken there from a police station by
the cabaret’s owner.

Her death led to a report by Cypriot Ombudsman on the existing system of entry and employment of
women on ‘artiste’ visas in Cyprus. The report indicated that in fact these women were working as
prostitutes in key entertainment venues in Cyprus. Importantly, it was shown that the Cypriot state was
aware of this situation and the risk posed to the women involved in this line of work.

Described image

Figure 10 Nikolay Rantsev, holding a picture of his late daughter, Oxana Rantseva

Long description

The case was brought by Nikolay Rantsev, Miss Rantsev’s father. He argued that there was no adequate
investigation into the circumstances surrounding his daughter’s death and that she was inadequately
protected by Cypriot police while she was alive. He also claimed that there was a complete failure of the
Cypriot justice system to punish the individuals responsible for exposing his daughter to the sexual
exploitation and ill treatment, which ultimately led to her death. The European Court of Human Rights
(ECtHR) found that Cyprus had not only failed to protect Miss Rantsev from being trafficked or from
being unlawfully detained prior to her death, but it had also failed to adequately investigate her death.
Russia, as the state of origin, was found by the Court to have failed to adequately investigate the way in
which Miss Rantsev had been trafficked from Russia to Cyprus.

Rantsev is an important decision on the human rights dimension of THB. Considering the extent of
states’ obligations under Article 4 of the ECHR (prohibition of slavery, servitude and forced labour), the
ECtHR held that a state might be obliged to go further than merely enacting legislation in order to meet
its obligations under Article 4 ECHR. This is particularly the case where ‘the state authorities were aware,
or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified
individual had been, or was at real and immediate risk of being trafficked or exploited (…) In case of an
answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities
fail to take appropriate measures within the scope of their powers to remove the individual from that
situation or risk’ (Rantsev, para. 286). This means that states have positive obligations to prevent THB
and to afford protection to persons who are victims of THB or might be at risk of becoming victims.

The judgment in Rantsev also shows the modern understanding of the definition of slavery. Activity 3
considered the definition of slavery in the Slavery Convention 1926, which rests on the notion of the
ownership of another person. In the modern world, where slavery has been abolished, it is no longer
possible to legally own another person. However, it is becoming clear that common features between
THB and the practices of slavery, forced labour or servitude exist. The ECtHR demonstrated these
common features in Rantsev, emphasising that: ‘trafficking in human beings, by its very nature and aim
of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human
beings as commodities to be bought and sold and put to forced labour, often for little or no payment.
(…) It involves the use of violence and threats against victims, who live and work under poor conditions’
(para. 281). This contemporary interpretation of slavery also means that international law instruments,
which do not explicitly mention THB, may nonetheless prohibit it because of the presence of common
features between concepts of modern and historical slavery.

Rantsev v. Cyprus and Russia, Application no. 25965/04, 10 October 2010

Country of Applicant: Russia

Date of Decision: 10-10-2010

Citation: ECtHR - Rantsev v. Cyprus and Russia, Application no. 25965/04, 10 October 2010

Court Name: European Court of Human Rights Grand Chamber

Headnote:

Trafficking in human beings falls under the prohibition of Art. 4 of the Convention. Consequently, state
parties have the positive obligation:

to adopt an adequate and comprehensive legal framework to combat this criminal offence;

to undertake protective measures whenever the authorities are aware or ought to have been aware of a
serious risk of a person being subject to trafficking;

and to appropriately investigate situations of potential trafficking.

Facts:

The applicant’s daughter Ms Rantseva, a Russian national, arrived in Cyprus on a “cabaret-artiste” visa
on 5 March 2001, but abandoned her work and lodging shortly after starting.

Ms Rantseva was later found by the manager of the cabaret (M.A.) and brought to the police station.
The police instructed M.A. to escort Ms Rantseva to the immigration office but in the interim took her to
a private apartment where he had also remained.

Ms Rantseva was later found dead and an inquest held in Cyprus concluded that Ms Rantseva had died
in circumstances resembling an accident while attempting to escape from an apartment where she was
a guest.

Following a further autopsy that was carried out after the repatriation of the body to Russia, the Russian
authorities considered the verdict of the inquest unsatisfactory. Consequently, the Prosecutor General
of the Russian Federation provided an unsolicited undertaking that Russia would have assisted in any
request for legal assistance by Cyprus aimed at the collection of further evidence. The Cypriot
authorities stated that the verdict was final, refused to carry out any additional investigations and did
not seek any legal assistance from Russia.

No steps were taken by either the Russian or Cypriot authorities to interview two young women living in
Russia who had worked with the applicant’s daughter at the cabaret.

In April 2009 the Cypriot authorities made a unilateral declaration acknowledging violations of Articles 2,
3, 4, 5 and 6 of the Convention, offering to pay compensation to the applicant and advising that
independent experts had been appointed to investigate the circumstances of Ms Rantseva’s death,
employment and stay in Cyprus.

Decision & Reasoning:

Applicability of article 37(1) of the Convention

The Court refused the Cypriot Government’s request for the application to be struck out by virtue of art.
37(1), on account of its unilateral declaration which acknowledged violations of the Convention, of the
steps taken to investigate the circumstances of Ms Rantseva’s death, and of proposed compensation.

Among the factors to be taken into account in assessing the applicability of the aforementioned norm in
similar cases, the Court recalled the nature of the complaints, whether the points of law at stake have
already been solved, and whether it is necessary to elucidate, safeguard and develop the rules
instituted by the Convention. (Ireland v. the United Kingdom; Guzzardi v. Italy; and Karner v.
Austria)

As to the present case, the Court firstly emphasised the serious nature of the allegations of trafficking in
human beings; and secondly pointed out the paucity of case-law on the interpretation and application of
Article 4 of the Convention in the context of trafficking cases. Therefore, it concluded that the
continuation of the examination of the case was required.
Preliminary decision on jurisdiction ratione loci

The Court did not accept the Russian Government’s submission that under Art. 1 of the Convention they
had no jurisdiction over, and hence no responsibility for, the events to which the application pertained.

The Court reiterated that jurisdictional competence of a State is primarily territorial and since the
alleged trafficking had commenced in Russia, the Court deemed Russia possibly responsible for
violations occurring on its territory.

Substantial Issues

1) Alleged violations of Art. 2 of the Convention

1. A. The Court found no violation of the Cypriot authorities’ positive obligation to protect Ms
Rantseva’s right to life under Article 2.

On the one hand, the Court reiterated that Article 2 enjoins the State not only to refrain from the
intentional and unlawful taking of life, but also to safeguard the lives of persons under its jurisdiction
(inter alia L.C.B. v. the United Kingdom) by undertaking positive actions, such as preventive operational
measures (inter alia Medova v. Russia); on the other hand, the Court acknowledged that such a positive
obligation to protect life arises when the authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of an identified individual.

In the present case, as in Osman v. the United Kingdom, the Court found that the applicant had failed
to demonstrate the latter prerequisite. Indeed, even if the police ought to have been aware that Ms
Rantseva might have been a victim of trafficking, there were no indications that Ms Rantseva’s life
was at real and immediate risk.

1.B. The Court found that there had been a procedural violation of Article 2 by Cyprus.

Even in the absence of evidence that Ms Rantseva died as a direct result of the use of force (see also
Calvelli and Ciglio v. Italy), in light of the ambiguous and unexplained circumstances surrounding
Ms Rantseva’s death the Court held that Cyprus had an obligation to adequately investigate her
death on their own motion under Article 2.

However, the Cypriot authorities’ investigation into the death had been riddled with deficiencies not
least since relevant witnesses had not been questioned and there had been refusal to accept an offer
from Russia on the collection of evidence.

1.B.2. On the contrary, the Court found no procedural violation of Article 2 by the Russian Federation.

Indeed, the Court held that the obligation to ensure an effective investigation applies in principle only to
the Country wherein the relevant fact occurred. Accordingly, the Court affirmed that Article 2 does not
require member States’ criminal laws to provide for universal jurisdiction in cases involving the death of
one of their nationals.
The Court observed that the only incumbent duty is that of the State where the evidence is located to
render assistance thereby allowing the securing of such evidence; and this duty had been fulfilled by
Russia.

2) Alleged violation of Art. 4.

General Principles and Considerations

In the first place, the Court held that trafficking in human beings as internationally defined falls within
the scope of art. 4 of the Convention, although the latter explicitly prohibits only slavery, servitude and
forced labour.

In this respect, the Court reiterated that it has never considered the provisions of the Convention as the
sole framework of reference for the interpretation of the rights and freedoms enshrined therein
(Demir and Baykara v. Turkey), and that due consideration must be given to the whole international
legal framework, as provided by the Vienna Convention rules of interpretation.

In addition, the Court emphasised that the object and purpose of the Convention to protect human
rights, requires it to be interpreted in a practical and effective way (Soering v. the United Kingdom) in
the light of present-day conditions.

Finally, the Court observed that trafficking in human beings by its very nature threatens human dignity
and the fundamental freedoms of its victims, and cannot be considered compatible the values
expounded in the Convention.

In light of the foregoing, the Court concluded that trafficking is per se prohibited by art. 4 of the
Convention.

That said, the Court reiterated that (as Arts. 2 and 3) Art. 4 requires the State to take positive actions to
protect individuals from its violation, not only by putting in place a comprehensive legal framework
(criminal, migration and business measures and regulations), but also by taking operational measures to
protect actual or potential victims (see Mahmut Kaya v. Turkey), and by investigating of its own
motion situations of potential trafficking. As to the latter obligation, the Court also specified that the
victim or the next-of-kin must be involved in the investigative procedure to the extent necessary to
safeguard their legitimate interests (see Paul and Audrey Edwards), and that States have to cooperate
with other States when the transnational character of the crime requires it.

2. A. The Court affirmed that Cyprus had violated Art. 4 of the Convention failing to comply with its
positive obligations.

Firstly, the Court affirmed that Cyprus had failed to put in place an appropriate legal and administrative
framework to combat trafficking.

Indeed, the “cabaret-artiste” visa regime, resulted in Cyprus being responsible for encouraging large
numbers of young foreign women to come to the island and be at risk of trafficking. Furthermore, the
responsibility for ensuring compliance with immigration obligations had to remain with the authorities
themselves, so that measures which encouraged cabaret owners and managers to track down or take
personal responsibility for the conduct of artistes were unacceptable.
Secondly, the police failed to take suitable operational measures to protect Ms Rantseva from trafficking
although sufficient indicators were available to the police to give rise to a credible suspicion that she
was at real and immediate risk of trafficking (Also taking into account credible national and European
reports on the general risk of TCNs being trafficked). Nevertheless, instead of releasing Ms Rantseva and
starting an investigation, the police had confided her into the custody of the cabaret manager.

2. B. The Court found no violations of Article 4 by Russia as regards the positive obligations to put in
place an appropriate legislative and administrative framework and to take protective measures;
conversely it found a procedural violation of Art. 4.

On the one hand, the Court considered that the Russian legal framework was able to ensure Ms
Rantseva’s practical and effective protection in the circumstances of the present case, and excluded
that facts which occurred on Russian territory could give rise to a credible suspicion of a real and
immediate risk to Ms Rantseva and to the consequent obligation to take positive protective measures.

On the other hand, the Court pointed out that the recruitment of the victim had likely occurred in
Russia, so that the latter had the obligation to investigate this first stage of the trafficking cycle.
Nevertheless, such an investigation had never been undertaken.

3) The Court held that there had been a violation of Article 5 § 1 by Cyprus on account of Ms Rantseva’s
unlawful and arbitrary detention.

Although it could be inferred that Ms Rantseva was initially detained by Cypriot Police to check her
immigration status, there had been no basis in domestic law for the police’s decision, once they had
established that her papers were in order, either to continue to hold her or to consign her to the cabaret
manager’s custody.

In addition, Cyprus’s responsibility was engaged for Ms Rantseva’s arbitrary and unlawful detention in
the apartment because, even though she had been held by a private individual, it was clear that this
would not have been possible without the active cooperation of the police.

4) The Court found inadmissible the complaints under art. 6(1) regarding the failure of the Cypriot
authorities (a)to bring criminal proceedings in respect of his daughter’s death, (b) to ensure his effective
participation in the inquest proceedings, (c) and to provide free legal assistance.

As to the complaints (a) and (b), the Court recalled that Article 6 does not give rise to the right to have
criminal proceedings instituted in a particular case, nor to the right to participate as they do not
determine civil rights and obligations (inter alia Rampogna and Murgia v. Italy). Consequently the
Court declared the complaints inadmissible ratione materiae under Article 35 §§ 3 and 4.

As to the complaint (c), the Court considered that it was not necessary to assess its relevance under
Article 6, since the complaint had been addressed when examining violations under Art. 2.

Outcome:

The Court held a violation of Arts. 2, 4, 5 of the Conventions by Cyprus.

The Court held a violation of Art. 4 of the Convention By Russia.

The Court declared the complaints under Art. 6 inadmissible or unnecessary to assess.

Observations/Comments:

A review of some criminal definitional aspects at stake in the judgment, namely the relationship
between trafficking and slavery, was written by Jean Allain, professor at Queen’s University, in Rantsev v
Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery.